Exhibit 2.1
STOCK PURCHASE AGREEMENT
THIS AGREEMENT made this 19th day of April, 2001 by and between Westminster
Securities Corp., a New York corporation with an office located at ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ("Westminster"), ▇▇▇▇▇▇▇ Global Corporation, a
Delaware corporation with an address of ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇ (the "Seller"), ▇▇▇▇ ▇. ▇'▇▇▇▇, an individual with an address at ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ("▇'▇▇▇▇"), ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, an individual with an
address at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ("Luskind") and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇,
an individual with an address at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ("▇▇▇▇▇▇")
(▇'▇▇▇▇, Luskind and ▇▇▇▇▇▇ are referred to collectively herein as
"Purchasers").
WHEREAS, Seller is the owner of 997 shares of the Class A Common Stock of
Westminster, par value $1.00 per share, which amount equals 99.7% of the issued
and outstanding shares of common stock of Westminster (collectively, the
"Westminster Common Stock"); and
WHEREAS, Purchasers wish to purchase the Westminster Common Stock from the
Seller; and
WHEREAS, Seller desires to sell the Westminster Common Stock to the
Purchasers, upon the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual premises and the
representations, warranties, covenants and agreements herein contained, and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties, intending to be legally bound, agree as
follows:
1. Sale. Upon the terms and conditions hereinafter set forth and on the
date of Closing (as hereinafter defined), Seller agrees to sell, transfer and
deliver to the Purchasers, and the Purchasers agree to purchase and take
delivery, upon the terms and conditions hereinafter set forth, of all the
Westminster Common Stock, free and clear of all security interests, claims,
liens and other encumbrances except as may be expressly set forth in this
Agreement.
2. Consideration. In consideration of the sale, transfer and delivery of
the Westminster Common Stock by the Seller hereunder, the Purchasers shall pay
or cause the payment of the following, on the date of Closing: (i) Seven Hundred
Thousand Dollars ($700,000), payable at Closing in the form of (A) $100,000, by
bank, cashier's or certified check, or by wire transfer from the Purchasers in
accordance with instruction provided by Seller and (B) pre-payment by
Westminster of the $600,000 principal amount due under that certain subordinated
Promissory Note ("Subordinated Note") dated May 27, 1999,
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made by Westminster in favor of Seller, and waiving any interest thereon
(collectively, the "Cash Portion of the Purchase Price"); (ii) delivery of a two
year Promissory Note executed by Westminster in the aggregate principal amount
of $300,000, bearing interest at the rate of ten percent (10%) per annum,
payable in two equal installments on the first and second anniversary of the
date hereof and containing such other terms and conditions as are set forth
therein and in the forms annexed hereto as Exhibit A (the "Note") and (iii) the
transfer and delivery to Seller of stock certificates owned or controlled by the
Purchasers representing an aggregate of 4,500,000 shares of the common stock of
Seller, par value $0.00001 per share (collectively, the "▇▇▇▇▇▇▇ Common Stock"),
duly endorsed for transfer, and free and clear of all security interests,
claims, liens and other encumbrances except as may be expressly set forth in
this Agreement. Nothing herein shall affect in any respect any outstanding stock
options granted to Purchasers by Seller, which shall remain outstanding in
accordance with their respective terms.
3. The Closing. The "Closing" means the settlement of the obligations of
Seller and Purchasers to each other under this Agreement, including the payment
of the purchase price to Seller as provided in Paragraph 2, which such closing
shall be held within three (3) business days following the satisfaction of the
conditions set forth in Section 4 hereof. At the Closing, the Seller will
deliver to the Purchasers (i) stock certificates registered in the name of the
Seller, representing the Westminster Common Stock, duly endorsed for transfer
and (ii) the original Subordinated Note for cancellation and the Purchasers will
deliver to the Seller (i) the Cash Portion of the Purchase Price, (ii) the Note,
fully executed by Westminster and (iii) stock certificates registered in the
name of the Purchasers, representing the ▇▇▇▇▇▇▇ Common Stock, duly endorsed for
transfer. Also at Closing, the Purchasers and Seller and certain other parties
each shall deliver a general release to the others in the forms annexed hereto
as Exhibits B-1 through B-5, collectively (the "Releases").
4. Conditions Precedent to Closing. All obligations of Seller and
Purchasers under this Agreement are subject to the fulfillment, or waiver by the
party or parties to be benefited, prior to or at the Closing, of all conditions
elsewhere herein set forth prior to the date of Closing and of each of the
following conditions:
(a) Execution and delivery of this Agreement by all parties hereto;
(b) Execution and delivery of the Releases by all parties thereto;
(c) Execution and delivery of the Note by Westminster to Seller;
(d) The respective representations, warranties and covenants of Seller
and the Purchasers contained in this Agreement shall be true and correct in
all respects on the date of Closing as if made on such date;
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(e) Seller and the Purchasers shall have performed and complied in all
respects with all covenants, agreements and conditions required by this
Agreement to be performed or complied with by each prior to or at the
Closing;
(f) The Seller shall have delivered to the Purchasers the Westminster
Common Stock;
(g) The Purchasers shall have delivered to Seller the ▇▇▇▇▇▇▇ Common
Stock;
(h) Execution and delivery by the Seller of a certificate signed by
the Chairman of the Board, the Vice Chairman of the Board, the President,
Executive Vice President or Senior Vice President and by the Treasurer or
the Secretary of the Company: (i) attaching resolutions of the Board of
Directors of the Seller approving this Agreement, the applicable Releases,
the sale of the Westminster Common Stock and all other agreements,
documents and instruments executed in connection herewith and therewith,
and of all other documents evidencing necessary Seller, government and
self-regulatory organization approvals, if any, with respect to this
Agreement, the Releases and the sale of the Westminster Common Stock, (ii)
certifying compliance with the terms and conditions, and representations,
warranties and covenants, hereof, and (iii) certifying the names and true
signatures of the officers of the Seller authorized to sign this Agreement,
the Releases, the certificates representing the Westminster Common Stock
and such other documents to be delivered by it hereunder;
(i) All actions necessary to assure compliance with all applicable
federal and state securities laws, including all authorizations, approvals
and permits, if any, of any government entity, governmental authority or
regulatory body in any state where the Westminster Common Stock and ▇▇▇▇▇▇▇
Common Stock is being sold or transferred that are required in connection
with the lawful transfer and sale of the Westminster Common Stock and
▇▇▇▇▇▇▇ Common Stock shall have been duly obtained and shall be effective
on and as of the Closing;
(j) The purchase and sale of the Westminster Common Stock and the
▇▇▇▇▇▇▇ Common Stock shall be legally permitted by all laws, rules and
regulations to which the Purchaser and Seller are subject;
(k) Approval, if required, by all applicable authorities having
jurisdiction over the parties hereto or the transactions contemplated
hereby, including, but not limited to, the approval of the New York Stock
Exchange, the American Stock Exchange and the National Association of
Securities Dealers, Inc. ("NASD");
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(l) Cancellation of the Subordinated Note; and
(m) Execution and delivery of Indemnification Agreements
("Indemnification Agreements"), in the forms annexed hereto as Exhibit C-1
to C-3, executed by the Seller in favor of ▇'▇▇▇▇, Luskind and ▇▇▇▇▇▇,
respectively, and relating to all action taken by ▇'▇▇▇▇ as a member of the
Board of Directors of Seller and by all Purchasers as members of the Board
of Directors of Westminster.
5. Representations, Warranties and Covenants of Seller. In order to induce
the Purchasers to enter into this Agreement, Seller represents, warrants and
covenants to the Purchasers that:
(a) The Seller has the power, authority and legal right to (i) make,
deliver and perform this Agreement, the Releases and the Indemnification
Agreements, (ii) authorize, sell and deliver the Westminster Common Stock
as set forth herein, (iii) redeem the ▇▇▇▇▇▇▇ Common Stock as set forth
herein and (iv) comply with the terms and conditions of this Agreement, the
Releases and the Indemnification Agreements, and all of the transactions
contemplated hereby and thereby. The Seller has taken all necessary action
to authorize the execution, delivery and performance of this Agreement, the
Releases and the Indemnification Agreements, and the consummation of the
transactions contemplated herein. This Agreement, upon execution and
delivery hereof, and the Releases and Indemnification Agreements, upon
execution and delivery thereof, will be a valid and binding obligation of
Seller, its subsidiaries and affiliates, enforceable in accordance with its
terms, subject to applicable bankruptcy, insolvency, reorganization and
moratorium laws and other laws of general application affecting enforcement
of creditors' rights generally;
(b) The execution, delivery and performance by Seller of this
Agreement and compliance herewith and the sale of the Westminster Common
Stock and the purchase of the ▇▇▇▇▇▇▇ Common Stock, will not result in a
violation of and will not violate, conflict with, or result in a breach of,
any of the terms of, or constitute a default under, any provision of state
or Federal law to which Seller is subject, or any mortgage, indenture,
contract, agreement, instrument, judgment, decree, order, rule or
regulation, or the Certificate of Incorporation, as amended, or By-laws of
the Seller, or other restriction to which the Seller or any affiliate
thereof is a party or by which it is bound, or result in the creation of
any mortgage, pledge, lien, encumbrance or charge upon any of the
properties or assets of Seller pursuant to any such term;
(c) No consent of any other party and no consent, license, approval,
qualification or authorization of, or registration, filing or declaration
with, any government entity is required in connection with the valid
execution, delivery and performance by the
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Seller of, or the validity or enforceability of, this Agreement or the
Releases or the offer, sale or delivery of the Westminster Common Stock, or
the offer, purchase and receipt of the ▇▇▇▇▇▇▇ Common Stock, other than
such as have been met or obtained at or prior to Closing;
(d) No litigation, suit, action or administrative proceeding of or
before any court, tribunal or government entity is presently pending, or,
to the knowledge of the Seller threatened, against the Seller or any
properties of the Seller, or with respect to this Agreement, which, if
adversely determined, would draw into question the validity of this
Agreement, the offer, sale and delivery of the Westminster Common Stock or
the offer, purchase and receipt of the ▇▇▇▇▇▇▇ Common Stock. Neither Seller
nor any subsidiary thereof has admitted in writing its inability to pay its
debts generally as they become due, filed or consented to the filing
against it of a petition in bankruptcy or a petition to take advantage of
any insolvency act, made an assignment for the benefit of creditors,
consented to the appointment of a receiver for itself or for the whole or
any substantial part of its property or assets, had a petition in
bankruptcy filed against it and has not been adjudicated a bankrupt or
filed a petition or answer seeking reorganization or arrangement under the
federal bankruptcy laws or any other law or statute of the United States of
America or any other jurisdiction or taken any action toward authorizing or
consenting to any of the foregoing;
(e) No stockholder of the Seller or any other third party has any
preemptive rights or rights of first refusal by reason of the sale by
Seller of the Westminster Common Stock or the purchase by Seller of the
▇▇▇▇▇▇▇ Common Stock;
(f) Seller will not, unless required by law or compelled by order of
any court having competent jurisdiction over the subject matter thereof,
comply with any third party litigation or other action taken against any
Purchaser or against Westminster;
(g) Nothing in this Agreement, the Releases, the Note, the
Indemnification Agreements or any other document executed in connection
with the transactions contemplated herein contains or will contain any
untrue statement of a material fact or will omit to state a material fact
necessary in order to make the statements contained herein or therein not
misleading;
(h) The Seller has in force directors and officers liability
insurance, with aggregate coverage of at least $10 million, including
customary coverage and exclusions thereto, which insurance covers each of
the Purchasers in their capacities as officers or directors of Westminster
or Seller and which insurance shall continue to cover each such Purchaser
in such capacity following any resignation from any such status and
following the Closing with respect to actions or omissions, or alleged
actions or omissions, which take place or took place prior to the Closing.
Seller shall timely make all premium payments necessary to ensure the
continuation of such coverage;
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(i) Seller shall ensure that all documentation filed or required to be
filed by ▇▇▇▇▇▇▇ Global Securities, Inc. ("LGS") with any government entity
or regulatory authority having jurisdiction over LGS with respect to the
resignation of ▇'▇▇▇▇ as a registered representative of LGS, including but
not limited to the filing of a Form U-5 with the NASD, shall contain no
negative inferences or other disparaging remarks concerning ▇'▇▇▇▇, his
tenure or the reasons for his resignation as a registered representative of
LGS, and shall state only that the resignation of ▇'▇▇▇▇ as a registered
representative of LGS was voluntary;
(j) Westminster shall continue to lease its current space from Seller
at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ for up to 150 days after the Closing on
terms and conditions (including the provision of all services currently
provided by Seller or an affiliate to Westminster, including, but not
limited to, all telephonic and telecommunications services and computerized
quotation services) identical to those under which the parties have been
operating since July 1, 1999 through the Closing (even if the actual terms
under which the parties have been operating are different from terms
contained in any written document relating to the same time period); and
(k) Seller shall not remove any assets from, or add any liabilities to
(other than those incurred in the ordinary course of business in strict
accordance with past practice), Westminster or its books and records any
time from the date hereof through the Closing; and
(l) At all times from the date hereof through Closing, Seller shall
continue to abide by the terms and conditions of Section 28(a), and all
other sections relating to the management of Westminster, as set forth in
that Amended and Restated Plan and Agreement of Reorganization, dated May
27, 1999, to which Seller and Westminster are a party.
6. Representations and Warranties of Purchaser. In order to induce Seller
to enter into this Agreement, each Purchaser represents and warrants, solely on
his own behalf, respectively, to the Seller that:
(a) Each Purchaser (i) is acquiring the Westminster Common Stock for
investment for his own account, not as a nominee or agent and not with the
view to, or for resale in connection with, any distribution thereof, (ii)
has adequate means of providing for his current needs and possible
contingencies, and has no need for liquidity of his investment in the
Westminster Common Stock; (iii) can bear the economic risk of losing his
entire investment in the Westminster Common Stock; (iv) has such knowledge
and experience in financial matters
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and is capable of evaluating the relative risks and merits of his
investment; and, (v) acknowledges and is aware that none of the Westminster
Common Stock sold, transferred and delivered shall be registered under
federal securities laws but, rather, shall be considered "restricted stock"
within the meaning of Rule 144 promulgated under the Securities Act, and
further that the certificates evidencing all of the Westminster Common
Stock shall bear a legend restricting transfer thereof, except under
certain circumstances and subject to certain conditions;
(b) Each Purchaser has the power, authority and legal right to (i)
make, deliver and perform this Agreement and the Release, (ii) authorize,
sell and deliver their respective shares of ▇▇▇▇▇▇▇ Common Stock and (iii)
comply with the terms and conditions of this Agreement and the Release
against him, and all of the transactions contemplated hereby and thereby.
This Agreement, upon execution and delivery hereof, will be a valid and
binding obligation of such Purchaser, enforceable in accordance with its
terms, subject to applicable bankruptcy, insolvency, reorganization and
moratorium laws and other laws of general application affecting enforcement
of creditors' rights generally;
(c) The execution, delivery and performance by each Purchaser of this
Agreement and compliance herewith, and the purchase of the Westminster
Common Stock and the sale of the ▇▇▇▇▇▇▇ Common Stock will not result in a
violation of and will not conflict with, or result in a breach of, any of
the terms of, or constitute a default under, any provision of state or
Federal law to which such Purchaser is subject, or any mortgage, indenture,
contract, agreement, instrument, judgment, decree, order, rule or
regulation or other restriction to which such Purchaser is a party or by
which Purchaser is bound, or result in the creation of any mortgage,
pledge, lien, encumbrance or charge upon any of the properties or assets of
such Purchaser pursuant to any such term;
(d) No consent of any other party and no consent, license, approval,
qualification or authorization of, or registration, filing or declaration
with, any government entity is required in connection with the valid
execution, delivery and performance by such Purchaser of, or the validity
or enforceability of, this Agreement or the Release or the offer, sale or
delivery of the ▇▇▇▇▇▇▇ Common Stock, or the offer or purchase of the
Westminster Common Stock, other than such as have been met or obtained at
or prior to Closing;
(e) Purchaser will not, unless required by law or compelled by order
of any court having competent jurisdiction over the subject matter thereof,
comply with any third party litigation or other action taken against any
Seller;
(f) Nothing in this Agreement or in such Purchaser's Release or any
other document executed in connection with the transactions contemplated
herein contains or
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will contain any untrue statement of a material fact or will omit to state
a material fact necessary in order to make the statements contained herein
or therein not misleading;
(g) No litigation, suit, action or administrative proceeding of or
before any court, tribunal or government entity is presently pending, or,
to the knowledge of any Purchaser threatened, against such Purchaser, or
with respect to this Agreement, which, if adversely determined, would draw
into question the validity of this Agreement, the offer, sale and delivery
of the ▇▇▇▇▇▇▇ Common Stock or the offer, purchase and receipt of the
Westminster Common Stock. Such Purchaser has not admitted in writing his
inability to pay his debts generally as they become due, filed or consented
to the filing against him of a petition in bankruptcy or a petition to take
advantage of any insolvency act, made an assignment for the benefit of
creditors, consented to the appointment of a receiver for himself or for
the whole or any substantial part of his respective property or assets, had
a petition in bankruptcy filed against him or been adjudicated a bankrupt
or filed a petition or answer seeking reorganization or arrangement under
the federal bankruptcy laws or any other law or statute of the United
States of America or any other jurisdiction; and
(h) No third party has any preemptive rights or rights of first
refusal by reason of the acquisition of the Westminster Common Stock or the
sale of the ▇▇▇▇▇▇▇ Common Stock by such Purchaser.
7. Entire Agreement, Amendments and Waivers. This Agreement constitutes the
entire and full understanding and agreement between the parties with regard to
the subject matter hereof. No amendment, waiver, discharge, termination or
modification of any provision of this Agreement shall be effective without the
written agreement of the parties hereto, and no termination or waiver of any
provision of this Agreement or consent to any departure therefrom by any party
shall be effective without the written consent of the other parties hereto. Any
waiver or consent shall be effective only in the specific instance and for the
specific purpose for which given.
8. Notices, Etc. All notices, requests, demands and other communications
hereunder shall be in writing and shall be deemed to be effective only if
delivered by hand, overnight courier or mailed by prepaid registered or
certified mail, return receipt requested, to the parties at their addresses set
forth herein, or to such other address as each party may specify by written
notice to the other from time to time. Such notices, requests, demands and other
communications hereunder shall be deemed to have been duly given upon such
personal delivery, on the next business day after being sent by overnight
courier, or on the date three (3) business days after the date postmarked by the
United States Post Office, as the case may be.
9. Broker. Each of the parties hereto represent and warrant to each other
that no
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broker was employed by any of them in connection with the transactions
contemplated by this Agreement. Each of the parties hereto agrees to indemnify
and hold the other parties harmless with respect to any claims made by any
broker for the payment of fees in connection with the transactions contemplated
hereby.
10. No Waiver, Remedies. No failure on the part of any party to exercise,
and no delay in exercising, any right, power or remedy hereunder shall operate
as a waiver thereof or of any similar breach or default thereafter occurring or
of a waiver of any other breach or default theretofore or thereafter occurring,
nor shall any single or partial exercise of any right hereunder preclude any
other or further exercise thereof or the exercise of any other right. The
remedies herein provided are cumulative and not exclusive of any remedies
provided by law.
11. Binding Effect, Assignability. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
permitted assigns. This Agreement shall not be assignable in whole or in part by
any party hereto without the prior written consent of the other parties hereto.
12. Term of this Agreement. This Agreement shall remain in full force and
effect until all obligations due and owing to each other party hereunder shall
have been satisfied; provided, however, that the indemnification obligations
shall survive for a period of three (3) years from the date hereof.
13. Governing Law; Jury Waiver; Jurisdiction. This Agreement will be
governed by, and construed in accordance with, the laws of the State of New
York, without regard to conflicts of laws principles thereof. Each of the
parties hereto waives, to the fullest extent permitted by law, any right it may
have to a trial by jury in respect of any litigation arising directly or
indirectly out of, under or in connection with this Agreement or any of the
transactions contemplated hereunder. The parties hereby submit to the exclusive
jurisdiction of the courts of the State of New York located in New York County
and the Federal courts located in Southern District of New York, with respect to
any action or legal proceeding commenced by any party with respect to this
Agreement. Each party irrevocably waives any objection it now has or hereafter
may have respecting the venue of any such action or proceeding or the
inconvenience of such forum, and each party consents to the service of process
in any such action or proceeding in the manner set forth for the delivery of
notices herein.
14. Execution in Counterparts; Severability; Interpretation. This Agreement
may be executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an
original and all of which when taken together shall constitute one and the same
agreement. In case any provision in or obligation under this Agreement shall be
invalid, illegal or unenforceable in any jurisdiction, the validity, legality
and enforceability of the remaining provisions or
9
obligations, or of such provision or obligation in any other jurisdiction, shall
not in any way be affected or impaired thereby. This Agreement, the Releases,
the Note and the Indemnification Agreements contain the final and complete
integration of all prior expressions by the parties hereto with respect to the
subject matter hereof and thereof and shall constitute the entire agreement
among the parties hereto and thereto with respect to the subject matter hereof
and thereof, superseding all prior oral or written understandings. The language
used in this Agreement will be deemed to be the language chosen by all parties
hereto to express their mutual intent, and no rule of strict construction will
be applied against any party.
15. Attorney Fees. In the event of litigation arising out of this
Agreement, the prevailing party shall be entitled to collect attorney fees and
costs from the losing party.
16. Non-Disclosure. Each party hereto agrees not to discuss or disclose the
terms hereof, their negotiations or the operations or each company other than as
provided by law or applicable regulation, or where such information which
becomes generally available to the public through no breach of the foregoing
covenant.
17. Termination. All parties agree to use their respective best efforts to
satisfy all conditions to closing herein as soon as practicable. Notwithstanding
this, if following all parties' best efforts, closing has not taken place on or
before 75 days following the date hereof, any party may elect to terminate this
agreement as to all parties by written notice to all parties within 15 days
following the termination of such 75-day period.
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IN WITNESS WHEREOF, this Agreement has been executed and delivered on the
day and year first herein above written.
▇▇▇▇▇▇▇ GLOBAL CORPORATION
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Chairman
WESTMINSTER SECURITIES CORP.
By: /s/ ▇▇▇▇ ▇. ▇'▇▇▇▇
------------------------------
▇▇▇▇ ▇. ▇'▇▇▇▇, President
/s/ ▇▇▇▇ ▇. ▇'▇▇▇▇
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▇▇▇▇ ▇. ▇'▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Exhibit A
PROMISSORY NOTE
April ___, ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
$300,000.00
FOR VALUE RECEIVED, the undersigned party (the "Borrower") hereby promises
to pay to the order of ▇▇▇▇▇▇▇ Global Corporation, with an address at ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ("Lender"), (i) the principal sum of Three
Hundred Thousand and 00/100 Dollars ($300,000.00). Interest hereon shall be at a
rate equal to ten percent (10%) per annum from the date hereof through the
Maturity Date. Payment hereunder shall be made as follows: (i) $150,000, plus
all accrued interest to date, shall be paid on the date which is the one year
anniversary of the date first written above and (ii) the balance of the
principal, plus all accrued but unpaid interest to date, if any, on the date
which is the two year anniversary of the date first written above (the "Maturity
Date"). Principal and interest may be prepaid, in whole or in part, at any time
without the prior written consent of Lender.
This Note and any of the rights granted hereunder are freely transferable
by the Lender only upon the prior written consent of the Borrower.
Notwithstanding any other provision hereof, interest paid or becoming due
hereunder shall in no event exceed the maximum rate permitted by applicable law.
Both principal and interest are payable in lawful money of the United States of
America to the Lender at the address above indicated.
The undersigned for itself and its respective successors and assigns hereby
waives presentment, demand, notice, protest and all other demands and notices in
connection with the delivery, acceptance, performance or endorsement of this
Note.
This Note and the provisions hereof are to be construed according to and
are governed by the laws of the State of New York, without regard to principles
of conflicts of laws thereof.
IN WITNESS WHEREOF, the undersigned has duly executed this document,
enforceable against the Borrower in accordance with its terms, on the ______ day
of April, 2001.
WESTMINSTER SECURITIES CORP.
By:
--------------------------------
▇▇▇▇ ▇. ▇'▇▇▇▇, President
Exhibit B-1
RELEASE
TO ALL TO WHOM THESE PRESENTS SHALL COME OR MAY CONCERN, KNOW THAT ▇▇▇▇▇▇▇
GLOBAL CORPORATION, as Releasor ("Releasor"), in consideration of the sum of Ten
Dollars ($10.00) received from each of WESTMINSTER SECURITIES CORP., ▇▇▇▇ ▇.
▇'▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ AND ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, as Releasees (collectively,
"Releasees"), and other good and valuable consideration, the receipt and
sufficiency whereof are hereby acknowledged, releases and discharges the
Releasees, each of all of Releasees' successors and assigns, from all actions,
causes of action, suits, debts, dues, sums of money, accounts, reckonings,
bonds, executions, claims, losses, costs, damages, liabilities, grievances,
causes of action, administrative, court or otherwise and demands whatsoever, in
law, admiralty or equity, other than claims arising directly under that certain
Stock Purchase Agreement, of even date herewith, by and between Releasor and
Releasees and the Notes (as defined therein) (any or all of the foregoing,
"Claims"), as well as any and all Claims arising under any other federal, state
or local statute or ordinance, the Releasor, Releasor's subsidiaries,
affiliates, administrators, successors and assigns ever had, now have or
hereafter can, shall or may, have for, upon, or by reason of any matter, cause
or thing whatsoever from the beginning of the world to the day of the date of
this Release. This Release may not be changed orally.
IN WITNESS WHEREOF, the Releasor has executed this Release on the _____ day
of April, 2001.
▇▇▇▇▇▇▇ GLOBAL CORPORATION
By:
------------------------------
Name:
President
Exhibit B-2
RELEASE
TO ALL TO WHOM THESE PRESENTS SHALL COME OR MAY CONCERN, KNOW THAT ▇▇▇▇▇
▇▇▇▇▇▇▇▇, as Releasor ("Releasor"), in consideration of the sum of Ten Dollars
($10.00) received from each of WESTMINSTER SECURITIES CORP., ▇▇▇▇ ▇. ▇'▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ AND ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, as Releasees (collectively, "Releasees"),
and other good and valuable consideration, the receipt and sufficiency whereof
are hereby acknowledged, releases and discharges the Releasees, each of all of
Releasees' successors and assigns, from all actions, causes of action, suits,
debts, dues, sums of money, accounts, reckonings, bonds, executions, claims,
losses, costs, damages, liabilities, grievances, causes of action,
administrative, court or otherwise and demands whatsoever, in law, admiralty or
equity (any or all of the foregoing, "Claims"), as well as any and all Claims
arising under any other federal, state or local statute or ordinance, the
Releasor, Releasor's subsidiaries, affiliates, administrators, successors and
assigns ever had, now have or hereafter can, shall or may, have for, upon, or by
reason of any matter, cause or thing whatsoever from the beginning of the world
to the day of the date of this Release. This Release may not be changed orally.
IN WITNESS WHEREOF, the Releasor has executed this Release on the _____ day
of April, 2001.
------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Exhibit B-3
RELEASE
TO ALL TO WHOM THESE PRESENTS SHALL COME OR MAY CONCERN, KNOW THAT ▇▇▇▇
▇'▇▇▇▇, as Releasor ("Releasor"), in consideration of the sum of Ten Dollars
($10.00) received from ▇▇▇▇▇▇▇ GLOBAL CORPORATION ("▇▇▇▇▇▇▇") and ▇▇▇▇▇
▇▇▇▇▇▇▇▇, as Releasees (collectively, the "Releasees"), and other good and
valuable consideration, the receipt and sufficiency whereof are hereby
acknowledged, releases and discharges the Releasees, each of all of Releasees'
successors and assigns, from all actions, causes of action, suits, debts, dues,
sums of money, accounts, reckonings, bonds, executions, claims, losses, costs,
damages, liabilities, grievances, causes of action, administrative, court or
otherwise and demands whatsoever, in law, admiralty or equity (other than claims
arising against ▇▇▇▇▇▇▇ directly under that certain Stock Purchase Agreement and
the Notes (as defined therein), of even date herewith, by and between Releasor,
▇▇▇▇▇▇▇ and certain other parties) (any or all of the foregoing, "Claims"), as
well as any and all Claims arising under any other federal, state or local
statute or ordinance, the Releasor, Releasor's subsidiaries, affiliates,
administrators, successors and assigns ever had, now have or hereafter can,
shall or may, have for, upon, or by reason of any matter, cause or thing
whatsoever from the beginning of the world to the day of the date of this
Release. This Release may not be changed orally.
IN WITNESS WHEREOF, the Releasor has executed this Release on the _____ day
of April, 2001.
---------------------------------
▇▇▇▇ ▇. ▇'▇▇▇▇
Exhibit B-4
RELEASE
TO ALL TO WHOM THESE PRESENTS SHALL COME OR MAY CONCERN, KNOW THAT ▇▇▇
▇▇▇▇▇▇▇, as Releasor ("Releasor"), in consideration of the sum of Ten Dollars
($10.00) received from ▇▇▇▇▇▇▇ GLOBAL CORPORATION ("▇▇▇▇▇▇▇") and ▇▇▇▇▇
▇▇▇▇▇▇▇▇, as Releasees (collectively, the "Releasees"), and other good and
valuable consideration, the receipt and sufficiency whereof are hereby
acknowledged, releases and discharges the Releasees, each of all of Releasees'
successors and assigns, from all actions, causes of action, suits, debts, dues,
sums of money, accounts, reckonings, bonds, executions, claims, losses, costs,
damages, liabilities, grievances, causes of action, administrative, court or
otherwise and demands whatsoever, in law, admiralty or equity (other than claims
arising against ▇▇▇▇▇▇▇ directly under that certain Stock Purchase Agreement and
the Notes (as defined therein), of even date herewith, by and between Releasor,
▇▇▇▇▇▇▇ and certain other parties) (any or all of the foregoing, "Claims"), as
well as any and all Claims arising under any other federal, state or local
statute or ordinance, the Releasor, Releasor's subsidiaries, affiliates,
administrators, successors and assigns ever had, now have or hereafter can,
shall or may, have for, upon, or by reason of any matter, cause or thing
whatsoever from the beginning of the world to the day of the date of this
Release. This Release may not be changed orally.
IN WITNESS WHEREOF, the Releasor has executed this Release on the _____ day
of April, 2001.
---------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Exhibit B-5
RELEASE
TO ALL TO WHOM THESE PRESENTS SHALL COME OR MAY CONCERN, KNOW THAT ▇▇▇▇▇
▇▇▇▇▇▇, as Releasor ("Releasor"), in consideration of the sum of Ten Dollars
($10.00) received from ▇▇▇▇▇▇▇ GLOBAL CORPORATION ("▇▇▇▇▇▇▇") and ▇▇▇▇▇
▇▇▇▇▇▇▇▇, as Releasees (collectively, the "Releasees"), and other good and
valuable consideration, the receipt and sufficiency whereof are hereby
acknowledged, releases and discharges the Releasees, each of all of Releasees'
successors and assigns, from all actions, causes of action, suits, debts, dues,
sums of money, accounts, reckonings, bonds, executions, claims, losses, costs,
damages, liabilities, grievances, causes of action, administrative, court or
otherwise and demands whatsoever, in law, admiralty or equity (other than claims
arising against ▇▇▇▇▇▇▇ directly under that certain Stock Purchase Agreement and
the Notes (as defined therein), of even date herewith, by and between Releasor,
▇▇▇▇▇▇▇ and certain other parties) (any or all of the foregoing, "Claims"), as
well as any and all Claims arising under any other federal, state or local
statute or ordinance, the Releasor, Releasor's subsidiaries, affiliates,
administrators, successors and assigns ever had, now have or hereafter can,
shall or may, have for, upon, or by reason of any matter, cause or thing
whatsoever from the beginning of the world to the day of the date of this
Release. This Release may not be changed orally.
IN WITNESS WHEREOF, the Releasor has executed this Release on the _____ day
of April, 2001.
---------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Exhibit C-1 to C-3 (FORM)
INDEMNIFICATION AGREEMENT
This INDEMNIFICATION AGREEMENT made and entered into this day of April,
2001 ("Agreement"), by and between ▇▇▇▇▇▇▇ GLOBAL CORPORATION, a Delaware
corporation with an address of ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
("Company"), and an individual with an address at _____________ ("Indemnitee").
WHEREAS, it is reasonable, prudent and necessary for the Company
contractually to obligate itself to indemnify current and former members of the
Board and those of its subsidiaries to the fullest extent permitted by
applicable law;
NOW, THEREFORE, in consideration of the premises and the covenants
contained herein, the Company and Indemnitee do hereby covenant and agree as
follows:
Section 1. Services by Indemnitee. Indemnitee has resigned as a director of
the Company, but remains a director of the Company's subsidiary, Westminster
Securities Corp. ("Westminster").
Section 2. Indemnification. The Company shall indemnify Indemnitee to the
fullest extent permitted by applicable law in effect on the date hereof or as
such laws may from time to time be amended in connection with or related to his
service as a director or officer of the Company or Westminster. The rights of
indemnification of Indemnitee provided hereunder shall include but shall not be
limited to those rights set forth herein, except that no indemnification shall
be paid to Indemnitee:
(a) on account of any suit in which judgment is rendered against Indemnitee
for an accounting of profits made from the purchase or sale by Indemnitee of
securities of the Company pursuant to the provisions of Section 16(b) of the
Securities Exchange Act of 1934 and amendments thereto or similar provisions of
any federal, state or local statutory law;
(b) on account of Indemnitee's conduct which is finally adjudged to have
been knowingly fraudulent or deliberately dishonest, or to constitute willful
misconduct;
(c) to the extent expressly prohibited by applicable law;
(d) for which payment is actually made to Indemnitee under a valid and
collectible insurance policy or under a valid and enforceable indemnity clause,
by-law or agreement, except in respect of any excess beyond payment under such
insurance, clause, by-law or agreement;
(e) if a final decision by a court having jurisdiction in the matter shall
determine that such indemnification is not lawful (and, in this respect, both
the Company and Indemnitee have been advised that the Securities and Exchange
Commission believes that indemnification for liabilities arising under the
federal securities laws is against public policy and is, therefore,
unenforceable and that claims for indemnification should be submitted to
appropriate courts for adjudication); or
(f) in connection with any proceeding (or part thereof) initiated by
Indemnitee, or any proceeding by Indemnitee against the Company or its
directors, officers, employees or other Indemnitees, unless (i) such
indemnification is expressly required to be made by law, (ii) the proceeding was
authorized by the Board, (iii) such indemnification is provided by the Company,
in its sole discretion, pursuant to the powers vested in the Company under
applicable law, or (iv) except as provided in Sections 10 and 13 hereof.
Section 3. Action or Proceeding Other Than an Action by or in the Right of
the Company. Indemnitee shall be entitled to the indemnification rights provided
in this section if he is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding whether civil,
criminal, administrative or investigative in nature, other than an action by or
in the right of the Company, by reason of the fact that he is or was a director,
officer, employee, agent or fiduciary of the Company or any affiliate or
subsidiary of the Company (including Westminster) or is or was serving at the
request of the Company as a director, officer, employee, agent or fiduciary of
any other entity, including, but not limited to, another corporation,
partnership, joint venture or trust, or by reason of anything done or not done
by him in any such capacity. Pursuant to this section, Indemnitee shall be
indemnified against all expenses (including attorneys' fees), costs, claims,
judgments, penalties, fines and amounts paid in settlement actually and
reasonably incurred by him in connection with such action, suit or proceeding
(including, but not limited to, the investigation, defense and appeal thereof),
if he acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the Company, and, with respect to any criminal
action or proceeding, had no reasonable cause to believe his conduct was
unlawful.
Section 4. Actions by or in the Right of the Company. Indemnitee shall be
entitled to the indemnification rights provided in this section if he is a
person who was or is made a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding brought by or in the
right of the Company to procure a judgment in its favor by reason of the fact
that he is or was a director, officer, employee, agent or fiduciary of the
Company or any affiliate or subsidiary of the Company (including Westminster) or
is or was serving at the request of the Company as a director, officer,
employee, agent or fiduciary of any other entity, including, but not limited to,
another corporation, partnership, joint venture or trust, or by reason of
anything done or not done by him in any such capacity. Pursuant to this Section,
Indemnitee shall be indemnified against all expenses (including attorneys'
fees), costs and amounts paid in settlement actually and reasonably incurred by
him in connection with such action, suit or proceeding (including, but not
limited to, the investigation, defense and appeal thereof) if he acted in good
faith and in a manner he reasonably believed to be in or not opposed to the best
interests of the Company; provided, however, that no such indemnification shall
be made in respect of any claim, issue, or matter as to which applicable law
expressly prohibits such indemnification by reason of an adjudication of
liability of Indemnitee to the Company, unless, and only to the extent that, the
Court of Chancery of the State of Delaware or the court in which such action or
2
suit was brought shall determine upon application that, despite such
adjudication of liability but in view of all the circumstances of the case,
Indemnitee is fairly and reasonably entitled to indemnification for such
expenses and costs as such court shall deem proper.
Section 5. Indemnification for Costs, Charges and Expenses of Successful
Party. Notwithstanding the other provisions of this Agreement, to the extent
that Indemnitee has served as a witness on behalf of the Company or has been
successful, on the merits or otherwise, in defense of any action, suit or
proceeding referred to in Sections 3 and 4 hereof, or in defense of any claim,
issue or matter therein, including, without limitation, the dismissal of an
action without prejudice, he shall be indemnified against all costs, charges and
expenses (including attorneys' fees) actually and reasonably incurred by him or
on his behalf in connection therewith.
Section 6. Partial Indemnification. If Indemnitee is entitled under any
provision of this Agreement to indemnification by the Company for some or a
portion of the expenses (including attorneys' fees), costs, judgments,
penalties, fines and amounts paid in settlement actually and reasonably incurred
by him in connection with the defense, investigation, settlement or appeal of
any action, suit, investigation or proceeding described in Section 3 or 4
hereof, but not, however, for the total amount thereof, the Company shall
nevertheless indemnify Indemnitee for the portion of such expenses (including
attorneys' fees), costs, judgments, penalties, fines and amounts paid in
settlement actually and reasonably incurred by him to which Indemnitee is
entitled.
Section 7. Determination of Entitlement to Indemnification. Upon written
request by Indemnitee for indemnification pursuant to Section 3 or 4 hereof, the
entitlement of the Indemnitee to indemnification pursuant to the terms of this
Agreement shall be determined by the following person or persons who shall be
empowered to make such determination: (a) the Board by a majority vote of a
quorum consisting of Disinterested Directors (as hereinafter defined); or (b) if
such a quorum is not obtainable or, even if obtainable, if the Board by the
majority vote of Disinterested Directors so directs, by Independent Counsel (as
hereinafter defined) in a written opinion to the Board, a copy of which shall be
delivered to Indemnitee. Such Independent Counsel shall be selected by the Board
and approved by Indemnitee. Upon failure of the Board to so select such
Independent Counsel or upon failure of Indemnitee to so approve same, such
Independent Counsel shall be selected by the Chancellor of the State of Delaware
or such other person as the Chancellor shall designate to make such selection.
Such determination of entitlement to indemnification shall be made not later
than 45 days after receipt by the Company of a written request for
indemnification. Such request shall include documentation or information which
is necessary for such determination and which is reasonably available to
Indemnitee. Any costs or expenses (including attorneys' fees) incurred by
Indemnitee in connection with his request for indemnification hereunder shall be
borne by the Company. The Company hereby indemnifies and agrees to hold
Indemnitee harmless therefrom irrespective of the outcome of the determination
of Indemnitee's entitlement to indemnification. If the person making such
determination shall determine that Indemnitee is entitled to indemnification as
to part (but not all) of the application for indemnification, such person shall
3
reasonably prorate such partial indemnification among such claims, issues or
matters.
Section 8. Presumptions and Effect of Certain Proceedings. The Secretary of
the Company shall, promptly upon receipt of Indemnitee's request for
indemnification, advise in writing the Board or such other person or persons
empowered to make the determination as provided in Section 7 that Indemnitee has
made such request for indemnification. Upon making such request for
indemnification, Indemnitee shall be presumed to be entitled to indemnification
hereunder and the Company shall have the burden of proof in the making of any
determination contrary to such presumption. If the person or persons so
empowered to make such determination shall have failed to make the requested
indemnification within 45 days after receipt by the Company of such request, the
requisite determination of entitlement to indemnification shall be deemed to
have been made and Indemnitee shall be absolutely entitled to such
indemnification, absent actual and material fraud in the request for
indemnification. The termination of any action, suit, investigation or
proceeding described in Section 3 or 4 hereof by judgment, order, settlement or
conviction, or upon a plea of ▇▇▇▇ contendere or its equivalent, shall not, of
itself: (a) create a presumption that Indemnitee did not act in good faith and
in a manner which he reasonably believed to be in or not opposed to the best
interests of the Company, and, with respect to any criminal action or
proceeding, that Indemnitee had reasonable cause to believe that his conduct was
unlawful; or (b) otherwise adversely affect the rights of Indemnitee to
indemnification except as may be provided herein.
Section 9. Advancement of Expenses and Costs. All reasonable expenses and
costs incurred by Indemnitee (including attorneys' fees, retainers and advances
of disbursements required of Indemnitee) shall be paid by the Company in advance
of the final disposition of such action, suit or proceeding at the request of
Indemnitee within twenty days after the receipt by the Company of a statement or
statements from Indemnitee requesting such advance or advances from time to
time. Indemnitee's entitlement to such expenses shall include those incurred in
connection with any proceeding by Indemnitee seeking an adjudication or award in
arbitration pursuant to this Agreement. Such statement or statements shall
reasonably evidence the expenses and costs incurred by him in connection
therewith and shall include or be accompanied by an undertaking by or on behalf
of Indemnitee to repay such amount if it is ultimately determined that
Indemnitee is not entitled to be indemnified against such expenses and costs by
the Company as provided by this Agreement or otherwise.
Section 10. Remedies of Indemnitee in Cases of Determination Not to
Indemnify or to Advance Expenses. In the event that a determination is made that
Indemnitee is not entitled to indemnification hereunder or if payment has not
been timely made following a determination of entitlement to indemnification
pursuant to Sections 7 and 8 hereof, or if expenses are not advanced in
accordance with Section 9 hereof, Indemnitee shall be entitled to a final
adjudication in an appropriate court of the State of Delaware or any other court
of competent jurisdiction of his entitlement to such indemnification or advance.
Alternatively, Indemnitee at his option may seek an award in arbitration to be
conducted by a single arbitrator pursuant to the rules of the American
Arbitration Association, such award to be made within sixty days following the
filing
4
of the demand for arbitration. The Company shall not oppose Indemnitee's right
to seek any such adjudication or award in arbitration or any other claim. Such
judicial proceeding or arbitration shall be made de novo and Indemnitee shall
not be prejudiced by reason of a determination (if so made) that he is not
entitled to indemnification. If a determination is made or deemed to have been
made pursuant to the terms of Section 7 or Section 8 hereof that Indemnitee is
entitled to indemnification, the Company shall be bound by such determination
and is precluded from asserting that such determination has not been made or
that the procedure by which such determination was made is not valid, binding
and enforceable. The Company further agrees to stipulate in any such court or
before any such arbitrator that the Company is bound by all the provisions of
this Agreement and is precluded from making any assertion to the contrary. If
the court or arbitrator shall determine that Indemnitee is entitled to any
indemnification hereunder, the Company shall pay all reasonable expenses
(including attorneys' fees) and costs actually incurred by Indemnitee in
connection with such adjudication or award in arbitration (including, but not
limited to, any appellate proceedings).
Section 11. Notification and Defense of Claim. Promptly after receipt by
Indemnitee of notice of the commencement of any action, suit or proceeding,
Indemnitee will, if a claim in respect thereof is to be made against the Company
under this Agreement, notify the Company in writing of the commencement thereof;
but the omission to so notify the Company will not relieve the Company from any
liability that it may have to Indemnitee otherwise than under this Agreement.
Notwithstanding any other provision of this Agreement, with respect to any such
action, suit or proceeding as to which Indemnitee notifies the Company of the
commencement thereof:
(a) The Company will be entitled to participate therein at its own expense;
and
(b) Except as otherwise provided in this Section 11(b), to the extent that
it may wish, the Company, jointly with any other indemnifying party similarly
notified, shall be entitled to assume the defense thereof, with counsel
satisfactory to Indemnitee. After notice from the Company to Indemnitee of its
election to so assume the defense thereof, the Company shall not be liable to
Indemnitee under this Agreement for any legal or other expenses subsequently
incurred by Indemnitee in connection with the defense thereof other than
reasonable costs of investigation or as otherwise provided below. Indemnitee
shall have the right to employ his own counsel in such action, suit or
proceeding, but the fees and expenses of such counsel incurred after notice from
the Company of its assumption of the defense thereof shall be at the expense of
Indemnitee unless (i) the employment of counsel by Indemnitee has been
authorized by the Company, (ii) Indemnitee shall have reasonably concluded that
there may be a conflict of interest between the Company and Indemnitee in the
conduct of the defense of such action or (iii) the Company shall not in fact
have employed counsel to assume the defense of such action, in each of which
cases the fees and expenses of counsel shall be at the expense of the Company.
The Company shall not be entitled to assume the defense of any action, suit or
proceeding brought by or on behalf of the Company or as to which Indemnitee
shall have made the conclusion provided for in (ii) above.
5
(c) The Company shall not be liable to indemnify Indemnitee under this
Agreement for any amounts paid in settlement of any action or claim effected
without its written consent. The Company shall not settle any action or claim in
any manner that would impose any penalty or limitation on Indemnitee without
Indemnitee's written consent. Neither the Company nor Indemnitee will
unreasonably withhold their consent to any proposed settlement.
Section 12. Other Rights to Indemnification. The indemnification and
advancement of expenses (including attorneys' fees) and costs provided by this
Agreement shall not be deemed exclusive of any other rights to which Indemnitee
may now or in the future be entitled under any provision of the by-laws of the
Company, any agreement or provision of the Certificate of Incorporation of the
Company, vote of stockholders or Disinterested Directors, provision of law, or
otherwise.
Section 13. Attorneys' Fees and Other Expenses to Enforce Agreement. In the
event that Indemnitee institutes, is subject to or intervenes in any proceeding
in which the validity or enforceability of this Agreement is at issue or seeks
an adjudication or award in arbitration to enforce his rights under, or to
recover damages for breach of, this Agreement, Indemnitee, if he prevails in
whole or in part in such action, shall be entitled to recover from the Company
(in addition to all sums collectible as a result of such adjudication or award)
and shall be indemnified by the Company against, any actual expenses for
attorneys' fees and disbursements reasonably incurred by him.
Section 14. Duration of Agreement. This Agreement shall continue until and
terminate upon the later of: (a) 10 years after Indemnitee has ceased to occupy
any of the positions or have any of the relationships described in Sections 3
and 4 of this Agreement; and (b) the final termination of all pending or
threatened actions, suits, proceedings or investigations to which Indemnitee may
be subject by reason of the fact that he is or was a director, officer,
employee, agent or fiduciary of the Company or any affiliate or subsidiary
thereof or is or was serving at the request of the Company as a director,
officer, employee, agent or fiduciary of any other entity, including, but not
limited to, another corporation, partnership, joint venture or trust, or by
reason of anything done or not done by him in any such capacity. The
indemnification provided under this Agreement shall continue as to Indemnitee
even though he may have ceased to be a director or officer of the Company. This
Agreement shall be binding upon the Company and its successors and assigns and
shall inure to the benefit of Indemnitee and his spouse, assigns, heirs,
devises, executors, administrators or other legal representatives.
Notwithstanding anything to the contrary herein, no indemnification or
advancement of expenses described herein shall be applicable to Indemnitee or
paid by the Company with respect to actions, suits or proceedings solely
relating to Indemnitee's service as a director or officer of Westminster either
prior to May 27, 1999 or after the date hereof.
Section 15. Severability. If any provision or provisions of this Agreement
shall be held to be invalid, illegal or unenforceable for any reason whatsoever,
(a) the validity, legality and enforceability of the remaining provisions of
this Agreement (including, without limitation, all
6
portions of any paragraphs of this Agreement containing any such provision held
to be invalid, illegal or unenforceable, that are not themselves invalid,
illegal or unenforceable) shall not in any way be affected or impaired thereby;
and (b) to the fullest extent possible, the provisions of this Agreement
(including, without limitation, all portions of any paragraph of this Agreement
containing any such provision held to be invalid, illegal, or unenforceable,
that are not themselves invalid, illegal or unenforceable) shall be construed so
as to give effect to the intent manifested by the provision held invalid,
illegal or unenforceable.
Section 16. Identical Counterparts. This Agreement may be executed in one
or more counterparts, each of which shall for all purposes be deemed to be an
original but all of which together shall constitute one and the same Agreement.
Only one such counterpart signed by the party against whom enforceability is
sought needs to be produced to evidence the existence of this Agreement.
Section 17. Headings. The headings of the paragraphs of this Agreement are
inserted for convenience only and shall not be deemed to constitute part of this
Agreement or to affect the construction thereof.
Section 18. Definitions. For purposes of this Agreement:
(a)"Disinterested Director" shall mean a director of the Company who is not
or was not a party to the action, suit, investigation or proceeding in respect
of which indemnification is being sought by Indemnitee.
(b)"Independent Counsel" shall mean a law firm or a member of a law firm
that neither is presently nor in the past five years has been retained to
represent: (i) the Company or Indemnitee in any matter material to either such
party, or (ii) any other party to the action, suit, investigation or proceeding
giving rise to a claim for indemnification hereunder. Notwithstanding the
foregoing, the term "Independent Counsel" shall not include any person who,
under the applicable standards of professional conduct then prevailing, would
have a conflict of interest in representing either the Company or Indemnitee in
an action to determine Indemnitee's right to indemnification under this
Agreement.
Section 19. Modification and Waiver. No supplement, modification or
amendment of this Agreement shall be binding unless executed in writing by both
of the parties hereto. No waiver of any of the provisions of this Agreement
shall be deemed or shall constitute a waiver of any other provisions hereof
(whether or not similar) nor shall such waiver constitute a continuing waiver.
Section 20. Notices. All notices, requests, demands and other
communications hereunder shall be in writing and shall be deemed to have been
duly given (i) if delivered by hand and receipted for by the party to whom said
notice or other communication shall have been directed or (ii) if mailed by
certified or registered mail with postage prepaid, on the third business day
7
after the date on which it is so mailed:
(a) If to Indemnitee, to ______________________
with a copy to:
▇▇▇▇▇▇▇ & Associates, Counselors At Law, P.C.
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
(b) If to the Company, to the address appearing in the first paragraph of this
Agreement, Attn: President
with a copy to:
or to such other address as may have been furnished to Indemnitee by the Company
or to the Company by Indemnitee, as the case may be.
Section 21. Governing Law. The parties agree that this Agreement shall be
governed by, and construed and enforced in accordance with, the laws of the
State of Delaware.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
day and year first above written.
▇▇▇▇▇▇▇ GLOBAL CORPORATION
ATTEST:
By: By:
------------------------------- --------------------------------
, President
ATTEST:
By:
------------------------------- --------------------------------
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